The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

Judge James Pohl, an Army colonel, said he found the government's reasoning "unpersuasive."

"The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, portions of which were read to The Post. "Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

Perhaps government attorneys failed to bring President Obama's Executive Order to Judge Pohl's attention. As I read the order, halting proceedings is not subject to the discretion of the military judge. The Military Commissions Act provides the President, acting through the Secretary of Defense, absolute authority over the military commissions process.

If Judge Pohl is in fact aware of President Obama's executive order, I would be curious to know on what basis he feels empowered to defy an order of the President. Perhaps Judge Pohl views that military commissions as a species of Article 1 court not subject to the President's orders. A very curious development.

I think there's a bit of confusion stemming from two different orders.

On January 20, the Government requested a 120-day continuance of the pending military commissions cases; a copy of the motion papers are available here. In that motion, the prosecution specifically represents that it is requesting a continuance pursuant to an oral order from the President to the Secretary of Defense and then in turn from the Secretary of Defense to the Chief Prosecutor of the Office of Military Commissions. (See paragraph 5(b).) As far as I can tell, it was that request for a continuance which was denied. The Court's decision may be erroneous, but it's not ultra vires or insubordinate --- both because the Court was not the subject of any direct order (the prosecutors were) and because the Court presumably has the authority under the MCA to rule on motions (even erroneously).

The Executive Order that BTD cites is dated January 22 (two days later), and the operative provision is directed from the President to the Secretary of Defense. Again, there's no way in which the military judge could violate that order, since (i) it hadn't been relayed to him through the chain of command; and (ii) it doesn't direct him to do anything. Rather, the Secretary is directed to take "steps sufficient to ensure . . . that proceedings . . . are halted."

At the time, I assume that both the President and the Secretary thought that the request for continuances made on January 20 was sufficient, but now that it is clear that it wasn't (in at least that one proceeding), the Secretary is presumably under a duty to do something else to "ensure" that the proceedings are halted, such as ordering the Convening Authority to withdraw the charges (with or without prejudice), directly ordering the military judge to stay the proceeding, or taking some other steps he deems appropriate to fulfill the President's request.

So in short, I don't think there's grounds for thinking anyone did anything illegal here (beyond the generally farcical status of the MCA), although what the military judge was thinking is beyond me... (It's not as if the military commission's proceedings are worth spending time on if the President isn't on board...)

The whole thing is more than a little silly (as much as a capital case can be); we're talking about a request for a stay of an arraignment --- it's not as if jeopardy has attached (if double jeopardy even applies in the commission system), so the prosecution shouldn't need the court's permission to withdraw and refile in 120 days, if the court doesn't want to stay proceedings. And we've obviously established by now that nobody is concerned with a speedy trial right...

But it isn't clear that jeopardy won't attach if the case proceeds to arraignment and al-Nashiri enters a plea, and that may be exactly the point of Judge Pohl's resistance to more delay. Al Jazeera makes a fairly clear presentation...

Judge James Pohl denied the motion put forward by the prosectution at Obama's request to suspend the trial for 120 days, saying it was "not reasonable" and "did not serve the interest of justice."

The White House said on Thursday it was looking at its options following the judge's ruling.

"We are consulting with the Pentagon and the department of justice to explore our options in that case," Robert Gibbs, a White House spokesman, said.

You're probably right that "nobody is concerned with a speedy trial," since it's five years too late for "speedy," but it's also possible that Judge Pohl has had enough of indefinite detention and doesn't want to condemn the defendant to another open-ended period of confinement while Obama's DOJ gets its ducks in a row.

But Pohl said he found the government's reasoning "unpersuasive" and he clearly felt he was not bound to bow to the administration's wishes.

The government, Pohl wrote, sought a delay because if cases went ahead, the administration's review could "render moot any proceedings conducted during the review"; "necessitate re-litigation of issues"; or "produce legal consequences affecting options available to the Administration after completion of the review."

"The Commission is unaware of how conducting an arraignment would preclude any option by the administration," said Pohl in a written opinion, which was obtained by The Post. "Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

The judge wrote that "the public interest in a speedy trial will be harmed by the delay in the arraignment."

But it would bring the Nashiri case back to square one and cost the government time if it attempted to re-start the case within military commissions system. Some military defense attorneys had urged the withdrawal of charges in all cases, which would have been a clear indication that military commissions were dead. But the Obama administration instead sought only a suspension, a decision that some human rights activists described as 'life support" for the current system.

And if an arraignment goes ahead and Nashiri enters a plea, subsequent proceedings would be subject to double jeopardy rules, according to defense lawyers. That could severely complicate the administration's ability to move Nashiri's case to federal court or courts martial, defense lawyers said

Isn't it strange that Judge Pohl has won the respect of all parties involved with the commissions, and managed to maintain his integrity through a long series of trials involving Guantanamo and Abu Ghraib, and successfully resisted abuses by the Bush administration through five years of military tribunals constantly altered in form and procedure, and honorably served as a military lawyer and judge for 27 years, including his current rank as Chief Judge of the 5th Circuit of the Military Trial Judiciary since 2002, and now...

So many armchair lawyers with zero experience of military law claim to understand the issues in a very complicated and unprecented legal tangle better than Judge Pohl, even though none of them has read more than a few fragments of Judge Pohl's ruling.

Recall that, when the Obama order first was sent out, it was sent to the prosecutors instructing them to seek the 120 day continuances. Everyone mis-reported at the time, and I made a big stink about it, that Obama ordered the tribunals stopped.

I argued then (and recall it now) that what Obama was doing, by having the prosecutors ask for relief by way of a motion, he was working to re-establish not only the idea of the Rule of Law, but also the practice of it. I argued then that there was a chance a judge would deny the motion request and the test would then be whether not just the name "Rule of Law" would be bandied about, but also whether it would be observed in practice.

In so many words, submit it to a judge, let the judge decide, if you don't like the decision, appeal and deal with it within the usual legal procedures.

Thus, Pohl may be (1) engaging in a little kabuki with the Administration by forcing them to appeal and work within the Rule of Law, or (2) testing the Administration to see whether they actually mean what they say or (3) angling for a job on Fox to come after being fired, in the event the Admin does not mean what they say and fires or disciplines him for not being the rubber stamp he was expected to be under Bush.

So, now the rubber meets the road - is Gitmo going to be a kangaroo court where the forms serve only to mask the fact that the President is playing all the hands at the table (which is what we've had, what with forced retirements of judges who ruled against the government and termination of the service of defense JAGs), or is it going to be a real court where the government can lose.

I suggest that Secretary Gates should send Judge Pohl a direct order and tell him that his proceeding has been halted and that he should stop issuing orders forthwith, other than one informing the parties that the proceedings have been halted by executive order.

Judge Pohl has already amply demonstrated his commitment to fiat justitia ruat caelum in previous orders prohibiting the destruction of the prison at Abu Ghraib, and later ensuring easy access to their clients for lawyers representing defendants at Guantanamo.

Judge Pohl is probably literally incomprehensible to a "lawyer" like Barack Obama, who never tried a case or published a scholarly article in a legal journal, and never regarded the law as anything other than a device for propelling his political career, but Mr. Obama would be wise to avoid a full-scale confrontation with Judge Pohl, and the other commenters on this thread should reconsider their advocacy for transforming all military courts into playthings of whoever happens to occupy the Oval Office.

I looked at your link, and there's also a summary on Wikipedia that I read for an overview, and nothing in either location seems to me to imply that the President can directly interfere with court procedure.

I'm not asking for direct statutory authority just to be difficult. Judge Pohl is an eminently respectable jurist, and before I dismiss any ruling by someone with an illustrious record of resisting abuses by the Bush administration, I want to see some clear language in black letter law.

for punishment, but here goes. The link in the main post, to the Military Commissions Act, clearly puts the "Authority for Military Commissions in the President". See Section 94b(b), which is on the third page.

This whole apparatus is under the authority of the President. He cannot be interfering with it because it is his to interfere with. This is NOT a regular military court. GET IT?

AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.--The President is authorized to establish military
commissions under this chapter for offenses triable by military commission as provided in this chapter.

The President is only authorized to establish the commissions, and no provision of the Act gives him authority to interfere with court procedure.

``(a) PURPOSE.--This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants
engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

``(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.--The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.`

``Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose."

"PROCEDURES AND RULES OF EVIDENCE.--Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be
prescribed by the Secretary of Defense, in consultation with the Attorney General."

``(c) DELEGATION OF AUTHORITY TO PRESCRIBE REGULATIONS.-- The Secretary of Defense may delegate the authority of the Secretary
to prescribe regulations under this chapter.
``

``§ 949u. Execution of confinement
``(a) IN GENERAL.--Under such regulations as the Secretary of Defense may prescribe, a sentence of confinement adjudged by a military commission under this chapter may be carried into
execution by confinement . . ."

ACTION BY CONVENING AUTHORITY.--(1) The authority
under this subsection to modify the findings and sentence of a military commission under this chapter is a matter of the sole discretion and prerogative of the convening authority.
``(2)(A) The convening authority shall take action on the sentence of a military commission under this chapter.
``(B) Subject to regulations prescribed by the Secretary of Defense, action on the sentence under this paragraph may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier.
``(C) In taking action under this paragraph, the convening authority may, in his sole discretion, approve, disapprove, commute, or suspend the sentence in whole or in part. The convening
authority may not increase a sentence beyond that which is found by the military commission.
``(3) The convening authority is not required to take action on the findings of a military commission under this chapter. If the convening authority takes action on the findings, the convening authority may, in his sole discretion, may--
``(A) dismiss any charge or specification by setting aside a finding of guilty thereto; or
``(B) change a finding of guilty to a charge to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge.
``(4) The convening authority shall serve on the accused or on defense counsel notice of any action taken by the convening authority under this subsection.`

FYI. "the convening authority" is the PResident of The United States.

So do you see NOW that these military commissions are a Presidential plaything? The President can completely disregard everything the military commissions do.

Most of the sections you quoted deal with the power to suspend or set aside sentences after judgement has been rendered. None of them deal with procedural interference.

Section 948f is also worth careful consideration:

`(f) PROHIBITION ON EVALUATION OF FITNESS BY CONVENING
AUTHORITY.--The convening authority of a military commission
under this chapter shall not prepare or review any report concerning
the effectiveness, fitness, or efficiency of a military judge detailed
to the military commission which relates to his performance of
duty as a military judge on the military commission.

This is one of several provisions intended to prevent exactly the sort of executive intrusion into court proceedings that Mr. Obama has attempted.

"(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.--The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.`"

To wit, the President can abolish the military commissions tomorrow but you argue he can not order a suspension of the military commissions.

The President has full power to pardon anyone convicted of anything by any court in the United States, except himself, after impeachment by the House and trial by the Senate.

This does not mean that the President is empowered to interfere with court procedure or even criminal investigations, and that's exactly why impeachment proceedings typically include charges of obstruction of justice.

If the President had unlimited authority to interfere with administration of the law, as many commenters on this thread allege, a charge of obstruction of justice would be vacuous by definition, but it isn't.

I predict that Mr. Obama will arrive at a significant accomodation with Judge Pohl, or Judge Pohl will simply prevail, and it's probably pointless to argue this thing ad nauseam when it will be obvious in a week or two who was right or wrong, and whether I'm an "obtuse troll," as several commenters so intelligently argued, or not.

and indeed the whole process, exists only because of the law cited, the Military Commissions Act. That Act puts full authority in the President to administer the process.

This is NOT a court that exists outside of the MCA. It exists ONLY because of the Act. The President, since he has full authority over the process, isn't interfering with it. He is doing what the law says he can do.

Maybe you should look through a few google results under Judge Pohl's name before you dismiss him as a fool and start calling anyone who defends him a "troll."

He resisted pressure by the Bush administration in numerous cases related to Abu Ghraib and Guantanamo, and now he's resisting Obama's attempt to turn the court into a public relations freak show.

I don't believe that the President has any authority express or implied to interfere with Judge Pohl's compliance with the law as Congress wrote it, and until someone cites a relevant statute to the contrary, I will continue to side with Judge Pohl against nonsense interpretations of military law.

to the Republicans and, for a while, a prime contender for the 1952 Presidential nomination.

I even recall his receiving delegates from, IIRC, Wisconsin.

Soon-to-be-former Colonel Pohl had better hope he is in ignorance of the Executive Order (not frickin' likely) and correct himself, tout suite. B/c if I'm Obama, Pohl won't be making any addresses to joint sessions of Congress nor will he be making any appearances on Fox Noise. He'll count himself lucky if all he does is spend a year or so counting snowflakes in Thule, Greenland.

The generals and on down are still drunk from BushCo blank check. Obama's drawdown plans, one brigade a month for 16 months is being dramatically challenged.

Colonel Pohl may be the first ripe pimple ready to burst.

Next act:

As President Obama moves to redefine the nation's mission in Iraq, he faces a difficult choice: Is he willing to abandon a campaign promise or risk a rupture with the military? Or can he finesse the difference?

I read it again...here's what the article says, for what its worth since i don't trust the press to report anything accurately:

In one of its first actions, the Obama administration instructed military prosecutors to seek 120-day suspensions of legal proceedings in the cases of 21 detainees who have been charged. There are approximately 245 prisoners held at Guantanamo.

The request was quickly granted in other cases when prosecutors told military judges that a suspension was in the "interests of justice" so that the "president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

Then next line is the paragraph quoted in your post. Sure seems to me tha the is deliberately not granting the 'request', as the Post puts it.

Seems to me that since the president is the commander in chief his last order is supreme law of the land in the military. The judge and those soldiers involved must obey the president first irrespective of any prior order.

are supposed to obey the law and ignore command influence. We only know what was reported in the news. See post #17 above.

We don't know that this judge was issuen any particular order at all. Before claiming he disobeyed an order, at least we should see a copy of the order that was given to him. Whatever BHO gave to SecDef is irrelevant to what the judge's orders are.

Besides signing an order it needs to be delivered. To the appropriate parties. If its not delivered its not much more than a rumor. You don't want the military acting on news accounts of what an order supposedly said, and who it is supposed to be delivered to.

The members of the military respond to orders given by the superior they report to, not news accounts. He has a reporting superior, if he has not has a change in orders, he is supposed to carry out his existing orders. There will be a record of what his orders are and what they were. That record will speak for itself.

Military defense lawyers also said yesterday that the Office of Military Commissions may have accidentally withdrawn the charges against all defendants at Guantanamo Bay facing trial, including Jawad and even Khalid Sheik Mohammed, the operational mastermind of the Sept. 11, 2001, attacks.

Defense lawyers said the Office of Military Commissions, while creating new jury panels, took the additional step of re-referring all charges, which, they said, would return all cases to square one and require new arraignments.

Looks like it was not an accident and Colonel Phol is either daring Congress to dissolve the Military Commission Act or trying to throw a wrench in Obama's plan to ultimately close Gitmo. In any case I do not think he is acting as a rogue holdout.

(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under paragraphs (2) or (3) of this subsection, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions.

Isn't the judge in this case promptly implementing a (future) disposition, as ordered by Sec 4(c)(4) in this case (as the judge's ruling only applies to Nashiri) by saying arraigning him will not preclude a review?

comes under the "Operation of Review" section which describes the scope of the review. It has nothing whatsoever to do with the halting of the proceedings. The "review" is what is supposed to take place after the halting of the proceedings.

that the Executive Order is directed to the Secretary of Defense, not to Judge Pohl. Now, maybe that's a technicality and maybe it isn't, but I'm not sure that Judge Pohl has disobeyed anything just yet.

Monday [12.15.08], Pohl presided at a pre-trial hearing in the case of an accused al Qaeda conspirator from Saudi Arabia, Ahmed Darbi, 33, and made no mention of his new assignment.

He did, however, remark that change could come to the war court following the Jan. 20 inauguration of President-elect Barack Obama, who has pledged to close the Guantánamo prison camps.

''This court is aware that on Jan. 20 there will be a new commander-in-chief, which may or may not impact on these proceedings,'' he said, warning everyone to stay focused ``unless and until a competent authority tells us not to.'' [emphasis added]

Aceions taken in the conduct of the court are not subject to being used in a Courts Martial action:

"(e) Treatment of Rulings and Precedents-- The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial convened under chapter 47 of this title. The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not form the basis of any holding, decision, or other determination of a court-martial convened under that chapter."

IMHO, this in no way releases any member from his obligations as a member of the military outside of the work within the charter of the commissions.

if the President has the ultimate authority over the tribunals, then why was his directive, discribed in most news stories as a request, addressed to the prosecutors and why did he request the prosecutors to only seek a 120 day stay? Seems if he has the authority he could have been more direct and would not need to seek anything. And why put a termination on it. What if they can't go through all the materials in 120 days? I think this is a little more complicated than the President simply saying stop.